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The round-up – Books, Boycotts, and Gove’s Debut

Michael Gove appeared before the Justice Select Committee last Wednesday, in the first true baring of his political mettle as justice secretary. Overall, it seems, the MP made a largely favourable impression, though legal commentators remain wary. UKHRB’s own Adam Wagner deftly compared Gove’s success to “when they gave Obama the Nobel Peace Prize…because he wasn’t George Bush”. The “post-Grayling Gove-hope” may, then, prove deceptively shallow, defined by the simple relief that Gove is not Grayling.

Yet Gove’s evidence before the committee was laudable – reasonable, measured, and skifully non-committal. Gove’s comments on the Human Rights Act obliquely signalled the “proposals” will be published “in the autumn”, failing to specify whether they would be accompanied by a draft Bill. His substantive points were similarly vague. The Lord Chancellor invoked the “abuse” of human rights as justification for the repeal of the HRA, before conceding he could not offer a “one-hundred per cent guarantee” that the UK would remain a party to the Convention. Such a position suggests a British Bill of Rights may “seek to limit certain rights”, argues academic Mark Elliot, which would, “quite possibly”, precipitate British withdrawal from Strasbourg altogether. Gove also stressed the role of the judiciary in applying the common law to uphold human rights, holding that “there is nothing in the Convention that is not in the common law”. Such a view is “highly contestable at best, plain wrong at worst”, holds Elliot, whilst Conor Gearty finds it stokes the fantasy of “the civil libertarian common law”. Gove seems to suggest that HRA-repeal and possible ECHR-withdrawal would be “far from earth-shattering events”, Elliot notes, as judges could still invoke a panoply of common-law rights. Whilst Gove is right to remind skeptics that HRA-repeal would not leave domestic judges powerless, such “overstatement” of the common-law rights model “might end up hoist on its own petard….ringing hollower than its cheerleaders”.

Elsewhere, Gove has won similar plaudits as the post-Grayling reformer, lifting the ban on friends and family sending books to prisoners. Inmates will now be able to receive books directly from loved ones, instead of through certified retailers, in a further relaxation of Grayling’s former policy. The change follows the high court ruling in February that restricting prisoners’ access to books was unlawful, impeding their rehabilitation. In a fine statement, Gove conveyed prisoners as “potential assets to society”, who “could be productive and contribute” through such resources. The current limit of 12 books per inmate will also be lifted. The announcement follows Gove’s scrapping of Grayling’s flagship £80m scheme for young offenders, described by critics as a “modern-day borstal”.

Yet Gove’s grappling with the prison system has just begun. The release of Chief Inspector of Prisons Nick Hardwick’s final report before his resignation makes for alarming reading. Assaults, deaths, suicides, and overcrowding in prison have risen sharply during Hardwick’s tenure; some jails are described as “places of violence, squalor, and idleness”. When asked about prison capacity before the Select Committee, Gove proved evasive, noting it was a “very good question”, yet lay within the exclusive authority of the courts. Whilst Gove has intimated his interest in expanding the use of electronic tagging as an alternative to custodial sentences, he acknowledged there were “big problems” with the government’s current contract for satellite tracking tags. In his first speech on prison policy last Friday, the justice secretary suggested “earned release” for employable inmates. Yet prison officers have heard such rhetoric before, questioning just how such change would be implemented. Gove must now answer the questions posed, on both penal reform and HRA-repeal, rather than hiding behind his expert emollience.

In Other News….

A picture tweeted by a police helicopter team of comedian Michael McIntyre, standing in a London street, is being investigated by the Information Comissioner’s Office. The photo, taken using a surveillance camera at 8am last Wednesday, suggests a possible breach of data protection laws in disclosing the image on Twitter without legitimate policing grounds. The event adds to growing fears of the misuse of state surveillance, and the NPAS’ increasingly inappropriate use of social media.

Parliamentary Assembly President Anne Brasseur has warned that European human rights protection would be undermined, if Strasbourg judgments are subject to “selective interpretation”. Concerned by the Russian Constitutional Court’s ruling last Tuesday, stating that ECHR judgments cannot “annul the precedence of the Constituion”, Brasseur observed that such a constitutional mechanism would “undermine the authority and the efficiency of the human rights protection system based on the Convention as a whole”. The Russian Federation remains one of the countries with the highest number of non-implemented Strasbourg judgments, with some 1,500 not yet implemented.

The home secretary, Theresa May, has rejected a request from the police to authorise the use of water cannon in England and Wales. In a snub to Conservative rival Boris Johnson, May claimed his three second-hand cannons were not in a fit condition to be deployed, and that the equipment would undermine the fundamental principle of policing by consent. Whilst the Mayor cites the precedent of water cannon in Northern Ireland, May maintained the country’s “stand-off situations” are markedly different to the “fast-moving, agile” rioting in London in 2011.

Barack Obama is facing increasing pressure to cancel an upcoming visit from Chinese president, Xi Jinping, after more than 145 human rights lawyers and campaigners were detained in China, as part of a nationwide crackdown. A petition to the White House, aiming to gather 100,000 signatures, urges for the September visit to be cancelled, and for all official exchanges with the Chinese government to be suspended. All the lawyers and activists involved have taken on cases involving free speech, human rights, and the abuse of executive power. Chinese state media has remained resolute, condemning the lawyers as “self-serving, self-publicists with nothing at heart but their own fame”.

Former DPP, Keir Starmer, has called for journalists to enjoy an overarching public interest defence against criminal charges. During a close debate at the London Press Club, Sir Keir claimed the laws protecting journalists are not “clear and accessible enough”, and that a new law “governing this difficult and controversial area” is needed. His comments follow the embarrassing decision by the CPS in April to throw out 9 of the 12 outstanding prosecutions against journalists facing trial for bribing public officials. Of the 27 journalists charged with misconduct under Operation Elveden, only one was convicted. Though Starmer issued guidelines for media-related prosecutions in September 2012, allowing journalists to pursue contentious stories without fear of prosecution, the Labour MP has now gone further – suggesting substantive legal protection for journalists. Whilst Conservative MPs have accused Starmer of a “sudden U-turn”, following his abortive DPP prosecutions, Society of Editors Director, Bob Satchwell, welcomes the proposal, preventing journalists from being accused of “all kinds of spurious crimes”.

The criminal bar has recommended that direct action over legal aid cuts should begin on 27th July, after barristers voted to support solicitors’ boycott of new legal aid work. Several chambers across the country have already adopted a “no-returns”, policy, and are refusing work with a representation dated from 1st July. In his appearance before the Select Committee, Gove said he was “disappointed” by the CBA vote, but stressed he was willing to negotiate, to ensure a “healthy engagement with the Bar”. The justice secretary’s failure to mention solicitors once within his evidence has incensed many, hardening the resolve of many striking solicitors.

Staff at Yarl’s Wood immigration detention centre have been ordered by the Home Office to return a self-help guide against deportation to inmates. The popular booklet was removed by Serco officials due to the “nature of the content”, which advises detainees on how to pursue their legal rights. Up to some 90 copies of the book were reportedly confiscated; Serco maintain they only removed a dozen. The news follows the suspension of the detained fast-track system last month, adding further pressure on the Home Office to close the notorious centre.

The High Court has ruled that emergency surveillance legislation introduced by the coalition government is unlawful. In a judicial challenge mounted by two MPS, Tom Watson and David Davis, the Data Retention and Investigatory Powers Act (Dripa) has been overturned; the government is expected to pass new legislation by March next year. The legislation was found inconsistent with EU laws, and ECHR Article 8, in failing to “lay down clear and precise rules providing for access to and use of communications data”.

The exceptional funding safety net is “not in accordance with the law”, the High Court ruled last week. Vulnerable claimants are not being provided with legal aid under the “safety net” rules, ruled Mr Justice Collins. The “main problem” lies in the forms, which are “far too complicated” for lay persons, as well as the small level of grants available. The MOJ is poised to appeal the successful challenge, which was brought by the Public Law Project.

Dr Adam Tucker has offered his formidable take on the HRA. In seeking to debunk the myth that the HRA has its own special, supra-legislative entrenched status, Tucker holds such an argument “damages our constitutional culture…narrowing the field of democratic debate”. Whilst the repeal of the HRA invites “difficult and controversial moral questions”, the entrenchment argument stultifies such debate altogether.

Jennifer Tambe offers a concise commentary on Lord Neuberger’s speech on the anniversary of the Magna Carta last month. Neuberger expressed his “diplomatic view” that the document is neither a failed peace treaty, nor foundational text, but lies “somewhere between these extremes”. He further suggested the judiciary is enjoying increasing influence, due to EU and HRA ascendancy, and devolution settlements. Yet Neuberger cautions against “judicial aggrandizement”: “while judges have a vital duty to ensure the rule of law…we must not be eager to expand our powers”.

The ECtHR has rejected a bid to overturn the ban on assisted suicide and voluntary euthanasia. The background to the case is widely known: Mrs Nicklinson, the widow of Tony Nicklinson, a sufferer from locked-in syndrome, complained that the domestic courts had failed to determine the compatibility of the Suicide Act 1961 with Mr Nicklinson’s Article 8 right to privacy. The ECtHR declared the application inadmissible, in being manifestly ill-founded, with Article 8 imposing no procedural obligations on domestic courts to examine the merits of a challenge brought in regards to primary legislation. Mr Lamb also challenged the failure to allow him to obtain permission for a volunteer to assist his suicide; his application was held similarly inadmissible, for non-exhaustion of domestic remedies.

The conditions of extreme poverty faced by an asylum seeking family, following their eviction from an accommodation centre, constituted degrading treatment in violation of Article 3, the ECtHR ruled last week. Following an order to leave Belgium, the Serbian family was left without basic means of subsistence, forced to return to their country of origin, where their severely disabled child died. The Court held that the Belgian authorities has failed to give due consideration to the applicants’ vulnerability, remaining for four weeks in extreme poverty, and failed to fulfill their Article 3 obligation, despite the reception crisis at the time.

The ECtHR ruled that inadequate physical conditions for HIV-positive prisoners was held to violate ECHR Articles 3 and 13. The case concerned the detention of HIV-positive prisoners in a psychiatric wing of a Greek prison hospital; the Court established inadequate sanitation facilities for the detainees, and irregularities in the administration of medical treatment. The applicants had been subjected to physical and mental suffering beyond the threshold expected in detention.

The Supreme Court and the Magna Carta Anniversary Commemoration Committee are working together to celebrate the 800th anniversary of the Magna Carta. On the final day of the Law Year, this Mock Trial will witness a panel of distinguished judges, including Lord Neuberger, hear the case for and against the Barons and Bishops.

If you would like your event to be mentioned on the Blog, please email the details to Jim Duffy, at jim.duffy@1cor.com.

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[…] The round-up – Books, Boycotts, and Gove’s Debut – The Lord Chancellor invoked the “abuse … as “self-serving, self-publicists with nothing at heart but their own fame”. Staff at Yarl’s Wood immigration detention centre have been ordered by the Home Office to return … […]

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Johnsays:

If England and Wales leave the ECHR, will this not confer added powers on judges?
From time to time, they cite decisions in cases in other countries, such as the US and some British Commonewealth countries. Presumably, they could also cite judgments decided in European courts but there would be no way in which English and Welsh legal opinion would be able to inform the development of European laws. It would turn England and Wales into EFTA equivalents to the EU in the legal field. England and Wales could end up being bound by judgments we are powerless to influence in any way. Bizarrely, Scots Law would, however, have a voice in European Law which England and Wales lack. The “law” of unintended consequences looks set to throw up all sorts of unexpected anomalies in future…….
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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.